Unlike some, I find much to praise in the recent statement by the USCCB Ad Hoc Committee for Religious Liberty, which Mark noted here.  This being a legal blog, however, I want to respond specifically to a claim being advanced on some blogs about the state of constitutional free exercise in this country.  It’s one that I’ve encountered many times before, but the response to it needs much more ventilation, as the media in various sorts of fora are just not getting it.  The misunderstanding leads commentators, even law professors, to make grossly incomplete, and unintentionally misleading, statements about whether the Free Exercise Clause may be invoked for infringements of religious liberty.  I’ll focus some of these comments on the HHS mandate, though I do not think the point is limited to that context.  The bottom line, in my view, is that it is very unclear whether the Free Exercise Clause is a viable legal possibility.  If I were a betting man in the mandate context, I’d put the odds somewhere around 60-40 for upholding the mandate.

The part that people do seem to get is the basic rule of Employment Division v. Smith — the announcement that a facially neutral law which applies generally is constitutional under the FEC, even if its effects may substantially burden a religious claimant.

But that’s just the beginning of the analysis.  I repeat: that is just the beginning of the analysis.  The tricky part is that Smith carves out a number of “exceptions” to the core holding.  One of these has, in part, grounded the Court’s decision in the Hosanna-Tabor case (disagree as one may with the Court’s distinction of Smith). 

Another “exception” — the key exception for our purposes — involves regulatory schemes which conduct individualized assessments for deciding whether they will grant exemptions.  The Court in Smith discussed this “exception” in order to make its way around the unemployment compensation cases (like Sherbert v. Verner).  But I put quotes around “exception” because it really isn’t an exception at all.  It’s part of the very rule that Smith announces — the part dealing with general applicability.  Laws which make lots of exceptions are not generally applicable.  And a law which is not generally applicable is lifted out of the Smith framework and (ostensibly) receives strict scrutiny (I bracket the issue of whether the sort of scrutiny that FEC claims received pre-Smith really was, in the event, strict).

The question for courts interpreting this exception is what precisely its contours ought to be.  Should it be limited to regulations with textual exceptions built right into the statute?  Should it apply whenever there is a practice of conducting individualized assessments, and granting individualized exemptions, whether or not the text so specifies?  Should it apply when there has been a history of exemptions granted on secular grounds, but not (never?) on religious grounds?  How many exemptions are enough to trigger the exception?  One?  If so, the exception seems to swallow the rule, so that can’t be right.  Should there be some sort of balancing approach to deciding when the exception kicks in and when not?  Should it be subject-specific — i.e., limited to the unemployment compensation context? (Deeply unpersuasive, in my view, but some courts have said so.)  All of these issues are unresolved as a matter of fixed doctrine.  Courts have resolved them in a wide variety of ways.  They remain to be litigated, and the results are uncertain.  There is at least one member of the Supreme Court — Justice Alito — who has looked favorably on this exception in a couple of cases when he was a Third Circuit judge.  How the rest of the Court might react, should the issue ever reach it, is anybody’s guess.

I should emphasize that it still seems to me, in the end, that an FEC claim by Catholic organizations will face a problem with the existing doctrine.  But…enough already with intoning the basic rule of Smith, as if this obviously resolves the question decisively, without so much as mentioning, let alone getting into, the doctrinal weeds of the exception.  That sort of curt analysis represents a gross misunderstanding of the state of free exercise.  The HHS mandate contains many, many exceptions: exceptions for grandfathered organizations; hardship exceptions of various kinds (I believe, but am not certain); exceptions based on the number of employees the organization has; and perhaps others.  There is a quite plausible claim to be made (it has been made already, several times, in pending litigation) that these exceptions can ground a claim that the government has violated the Constitution.  That doesn’t mean the claim will succeed.  The results are uncertain, and are likely to vary (at least for the foreseeable future) from court to court. 

In my opinion, that is just as it should be.  Let the issue rattle around the lower courts for a decade or two.  Let judges apply themselves to these problems in light of the particular circumstances and factual specifics facing them.  Let’s see what shakes out with time and that peculiar variety of judicial wisdom which results from keeping your eyes fixed narrowly on the specific case or controversy right in front of you.